The National Catholic Review
John F. Kavanaugh

For most of us, the legal system seems something far away. We know of lawyers and lawsuits, crime and punishment. The law keeps things going smoothly, maintains order and apparently insures that justice is served. At least apparently. I’ve had the usual contact: parking tickets, traffic violations, jury duty. But this past year has given me a taste of what really goes on in the lives of many people facing the impersonal mechanisms of law enforcement. A good friend, who has given most of his adult life to helping the poor with housing and sustaining our inner cities, was stopped by a local municipal trooper while on an interstate trip to visit his daughter. The trooper didn’t like the fact that the license plate was taped onto the inside of the rear window. (He possibly didn’t realize that this is what you do when you have had two or three of your plates stolen in a year.)

It turned out that while the conversation was taking place on the highway, a computer search reported that my friend had a warrant out for him because of a financial misunderstanding in a different city over 10 years ago. The trooper locked him up in the local jail.

Then began the nightmare. My friend is not a big-time spender, so he did not have a lawyer to call. Since it was a Saturday morning, the only person he could reach by collect call was his wife. Over the next five days, she would be his only consolation and anchor in what seemed a Kafka-like nightmare. She went to visit him at the jail, at the assigned times, separated by glass booth and phone amplification through a shout-hole, the prison television booming in their ears, a guard looming above them. For the weekend there were no officials to speak to, no one to plead before, no one to explain the charges against him. Monday, the prosecutor was away; Tuesday was a national holiday; Wednesday he was informed that his wife would have to somehow raise $2,000 to cover a $45,000 bail cash bond. His supposed crime was a $2,000 unpaid debt from 10 years agoa debt he had proof of actually paying, but that had been misfiled by a clerical worker. After the couple had lost almost a week of work, he was released on bail and ordered to appear in the original city, where he would have to pay another $1,500 bail. After three trips to that city and three months of anxiety, the charges were dropped.

For two people who had spent their years visiting prisons or helping others who had been through the penal system, it was a bracing experience. Not only did they undergo firsthand the powerlessness of the poor and the voicelessness of the underprivileged; they also suffered the anxiety and disruption that countless others, with even less resources to call on, undergo every day.

What if he did not have a wife to console and assist him? What if he were an undocumented worker not allowed to notify any of his family? What if his job were the kind from which he would be fired for missing a week? What if there were no friends who could contribute to bail? What if he had not had the proof that he had paid his debt? What if he could not afford the money even to talk to a lawyer over the phone? What if he had little education or had been arrested before? What if he were black or an immigrant or an Arab?

Even though these what ifs did not apply in his case, the arm of the law was brutal and blind enough. In the case of many citizens, it is devastating. The PBS Frontline series has shown how unjust the law can be in its brilliant presentation, The Plea, produced by Ofra Bikel. It is a hair-raising account of numerous cases where defendants, even though innocent, accept a plea bargain, just to get out of jail and escape the endless uncertainty. After 25 days in jail, for example, a mother of two accepts 10 years of probation so she can be with her children. Little did she realize that the probation would require a monthly fee and disqualify her for federal food stamps, all of which eventually led to eviction from her home.

The PBS Web site for The Plea quotes Steve Bright, a law professor and director of the Southern Center for Human Rights, who observes: One reason that a lot of people plead guilty is because they’re told they can go home that day, because they will get probation. What they usually don’t take into account is that they are being set up to fail. A plea bargain promises gentle treatment. To refuse a plea is to invite an extra harsh sentence in a system of over-extended and often underpaid public defenders, overworked prosecutors and overbooked judges. A professor of law at Georgetown sums it up: The system stinks.

But not everywhere. In addition to attorneys like Bright and law school professors who motivate their students to be true advocates of justice, firms across the country have mounted pro bono teams to offset at least some of the inequity. One of the most prominent, Holland and Knight, which has offices in 25 U.S. cities and on four continents, suffered the death of its founder, Chesterfield Smith, during the past year. Essential to his vision of practicing law was the belief that access to the justice system must be provided to those who cannot afford a lawyer. By the time of his death, Holland and Knight, with hundreds of lawyers working under the leadership of its Community Services Team (10 of its lawyers around the country who do only pro bono work), had been described by The American Lawyer as a pro bono champion.

Until a reform of the system itself, the poor will have to rely on advocates such as these.

John F. Kavanaugh, S.J., is a professor of philosophy at St. Louis University in St. Louis, Mo.